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ARTICLE the THIRD.·
Of the Lawyer's morals.

Did not think proper to conclude this little treatife on the eloquence of the bar, without faying fomething of the lawyer's morals, and the chief qualifications requifite to his profeffion. Youth will find this fubject treated in all the extent it deferves, in the twelfth book of Quintilian's inftitutions, which is the most elaborate and most useful part of his work.

I. Probity,

Cicero and Quintilian lay it down as an indifputable principle in feveral parts of their works, that eloquence fhould not be feparated from probity; that the talent of speaking well fuppofes and requires that of living well; and that to be an orator, a man must be virtuous, agreeable to Cato's definition: Orator vir bonus dicendi peritus. Without this, fays Quintilian, eloquence, which is the most beautiful gift that nature can bestow upon man, and by which the has diftinguished him in a particular manner from other living creatures, would prove a fatal prefent to him; and be fo far from doing him any fervice, that she would rather treat him as a ftep-mother, and like an enemy rather than a mother, in imparting a talent to him for no other end, but to opprefs innocence, and fight against truth, like the putting a sword into the hands of a madman. It would be better, adds he, that

m Si vis illa dicendi maliciam inftruxerit, nihil fit publics privatifque rebus perniciofius eloquentia.... Rerum ipfa natura, in eo quod præcipuè indulfifle homini videtur, quoque ros à cæteris animalibus feparaffe, non parens fed noverca fuerit, fi facultatem dicendi

fociam fcelerum, adverfam innocentiæ, hoftem veritatis invenit. Mutos enim nafci, & egere omni ratione fatius fuiffet, quàm Providentia munera in mutuam perniciem convertere. Quint. 1. 12.

C. I.

a man

a man fhould be deftitute of fpeech, and even of reafon, than to employ them to fuch pernicious ends.

The flightest attention will discover how neceflary honesty is to a pleader. His whole defign is to perfuade; and the fureft way of effecting it, is to prepoffefs the judge in his favour, fo that he may look upon him as a man of veracity and candour, full of honour and fincerity; who may be entirely trufted; is a mortal enemy to a lie, and incapable of tricks and cunning. In his pleadings, he fhould appear not only with the zeal of an advocate, but with the authority of a witness. The reputation he has acquired of being an honeft man, will give great weight to his arguments: whereas when an orator is dif-esteemed, or even fufpected by the judges, 'tis an unhappy omen to the cause.

II. Difinterestedness.

• The question treated by Quintilian in the laft book of his rhetoric, whether lawyers ought to plead without fees or gratuity, does not square with the manners or customs of our days; but the principles he there lays down, fuit all ages and times.

He begins with declaring, that it would be infinitely more noble and becoming fo honourable a profeffion, not to fell their fervice, nor debafe the merit of fo great a benefit, fince most things may feem contemptible, when a price is fet upon them.

He afterwards owns, that if a lawyer has not

Plurimum ad omnia momenti eft in hoc pofitum, fi vir bonus creditur. Sic enim continget, ut non ftudium advocati videatur afferre, fed penè teftis fidem. Quint. 1. 4. c. I.

Sic proderit plurimum caufis, quibus ex fua bonitate faciet fidem. Nam qui, dum dicit, malus videtur, utique malè dicit. 1. 6. c. 3. Videtur talis advocatus male caufæ argumentum. 1. 12. c. 1.

Quint. 1. 12. c. 7.

P Quis ignorat quia id longè fit

eftate honeftiffimum ac liberalibus difciplinis & illo quem exigimus animo digniffimum, non vendere operam, nec elevare tanti beneficii auctoritatem? cum pleraque hoc ipfo poffint videri vilia, quòd pretium habent.

At fi res familiaris amplius aliquid ad ufus neceffarios exigit, fecundùm omnes fapientium leges patietur fibi gratiam referri. .••• Neque enim video quæ juftior acquirendi ratio, quàm ex honeftifmo labore, & ab iis de quibus

optimè

eftate enough of his own, he then is allowed by the laws of all wife legiflators, to accept fome gratuity from the party he pleads for; fince no acquifition can be more just than that which proceeds from fuch honeft labour, and is given by thofe for whom we have performed fuch important fervices; and who would certainly be very unworthy, if they failed to acknowledge them. Befides, as the time which a lawyer beftows upon other peoples affairs, prevents him from thinking of his own; 'tis not only just, but neceffary he should not lofe by his profeffion.

But Quintilian would have the lawyer, even in this cafe, keep within very narrow bounds; and be very watchful in obferving the perfon from whom he receives any gratuity, together with the quantity, and time during which he receives it. By which he feems to infinuate, that the poor fhould be ferved gratis, and that he should take but moderately even from the rich in fine, that the lawyer fhould forbear receiving any gratuity, after he has acquired a reasonable fortune.

He muft never look upon what his clients offer him, as though it were a payment or a falary, but as a mark of friendship and acknowledgment; well knowing he does infinitely more for them than they do for him; and he must make this ufe of it, becaufe a good office of that kind ought neither to be fold nor loft.

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As to the custom of making agreements with clients, and taxing them in proportion to the nature of the cause and the rifque they run; 'tis, fays Quintilian, an abominable kind of traffick, fitter for a pirate than an orator, and which even those, who have but a flender love for virtue, will avoid.

Far therefore from the bar, and fo glorious a profeffion, fays he in another place, be thofe mean and mercenary fouls who make a trade of eloquence, and think of nothing but fordid gain. The precepts, fays he, which I give concerning this art, don't fuit any perfon who would be capable of computing how much he fhall gain by his labours and study.

If a heathen has fuch noble fentiments and expreffions, how much more glorious and difinterefted fhould the views of a lawyer be according to the principles of Chriftianity? And indeed we fee this fpirit prevail among the Lawyers of France. They are fo delicate in this point, as to debar themselves from bringing any actions for payment of their fees; and this they carry fo far, that they would difown any member of their profeffion, who fhould commence any fuit, or retain his client's papers, in order to oblige him to make fome acknowledgment for the affiftance he had given him.

III. Delicacy in the choice of Causes.

"As foon as we suppose the orator a worthy man, 'tis plain he can never undertake a caufe he knows to be unjuft. Juftice and truth only have a right to the

it Pacifcendi quidem illi pirati cus mos, & imponentium periculis pretia procul abominanda negotiatio, etiam mediocriter improbis aberit.

Neque enim nobis operis amor eft nec, quia fit honefta atque pulcherrima rerum eloquentia, petitur ipfa, fed ad vilem ufum & fordidum lucrum accingimur.. Ne velim quidem lectorem dari

....

mihi quid ftudia referant computaturum. Quint, 1. 1. c. 20.

"Non convenit ei quem orato rem effe volumus, injufta tueri fcientem.. Neque defender omnes orator: idemque portum illum eloquentiæ fuæ falutarem, non etam piratis patefacier, duceturque in advocationem maximè caufa, Quint. 1. 12. c. 7.

affiftance

affiftance of his voice. Guilt has no title to it, what fplendor or credit foever it may appear to have. His eloquence is a fanctuary for virtue only, and a fafe haven for all, except pirates.

* Before therefore a man discharges the function of a lawyer, let him perform that of a judge; let him raise a kind of domestick tribunal in his closet, and there carefully, and without prejudice, weigh and examine the arguments of his clients, and pronounce a fevere judgment against them, in cafe it be neceffary.

If even, in the course of the affair, he happens, by a ftricter inquiry into the title, to discover that the cause he undertook, fuppofing it honeft, is unjust; he then must give his client notice of it, and not abufe him any longer with vain hopes; and advise him not to profecute a fuit which would prove very fatal to him, even though he fhould gain it. If he submits to his advice, he will do him great fervice; if he defpifes it, he is unworthy of any farther affiftance from his lawyer.

IV. Prudence and moderation in pleading..

These virtues are chiefly neceffary on account of raillery. There are certain polite and becoming rules in this point, which every orator, and every gentleman should obferve inviolably. It is not neceffary to remark, that it would be inhuman to infult people in difgrace, when their very condition entitles them to compaffion, and who befides may be unfortunate, without being criminal. In general, our raillery

Sic caufam perfcrutatus, propofitis ante oculos omnibus quæ profint noceant-ve, perfonam deinde induat judicis, fingatque apud fe agi caufam. Ib. c. 8.

judices fumus, beneficium eft, ut non fallamus vana fpe, litigantem. Neque eft dignus operâ patroni, qui non utitur confilio. Ib. c. 7.

y Adverfus miferos inhumanus eft jocus.

2 Lædere nunquam velimus, longèque abfit propofitum illud, potius amicum quam dictum perdidi. Quint. 1. 6. c. 4.

Meque verò pudor obftet quominus fufceptam, cùm melior videretur, litem, cognita inter difceptandum iniquitate, dimittat, cùm priùs litigatori dixerit verum. Nam & in hoc maximum, fi æqui *I am of opinion, that it ought to be read so, instead of ludere, as it is in all the editions.

fhould

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